M (P) v Refugee Appeals Tribunal (Pillay) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Anthony Barr
• Judgment Date: 02 October 2014
• Neutral Citation: [2014] IEHC 497
• Court: High Court
• Date: 02 October 2014

M (P) v Refugee Appeals Tribunal (Morgan Pillay) & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, THE REFUGEE ACT 1996 (AS AMENDED) AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

BETWEEN

P. M.

APPLICANT

AND

NEHRU MORGAN PILLAY ACTING AS THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

[2014] IEHC 497

[No. 1520 J.R./2010]

THE HIGH COURT

Asylum application - Malawi national - Fear of persecution on return - Sexual orientation - Credibility findings - Identity and nationality - Factual error as to the timing of when applicant received anonymous letter - Natural and constitutional justice - Country of origin information

Facts The applicant is a Malawi national. He is a homosexual. He suffered persecution in Malawi owing to his sexual orientation. He was beaten up on occasion suffering broken teeth and has scarring to his face owing to one particular incident outside a nightclub. He was often threatened by his neighbours and received an anonymous letter threatening to report him to the police. Subsequently, the applicant left Malawi. He flew, first to Kenya and then to Holland. Shortly after his arrival in Ireland his bag, which contained his passport and other documents, was stolen. He applied for asylum; however his application was refused by the Refugee Applications Commissioner. He appealed to the Refugee Appeals Tribunal (RAT) yet was also turned down. The RAT claimed the applicant”s account was lacking in credibility. The applicant argued the RAT erred in fact and in law as it failed to make a definitive finding as to his identity and nationality. The applicant said the RAT erred in fact and in law as it failed to show where the credibility issue lay in respect of the applicant kissing a man when he was 17 and realising that he was a homosexual in the UK in 2004. It was submitted that the RAT made a significant factual error with regards the timing of when he received the anonymous threatening letter. The applicant submitted that the respondents erred in law and breached national and constitutional justice requirements in making a credibility issue in relation to the applicant”s return to Malawi from the United Kingdom when his visa had expired. The applicant further submitted that the RAT did not have regard to the country of origin information relating to the plight of homosexuals in Malawi. He submitted that the respondent erred in law and breached constitutional justice requirements in failing to make any assessment of the relevant laws and regulations of the applicant”s country of origin and how they applied to homosexuals.

Held The judge was satisfied that the RAT did make what was effectively a clear finding that the applicant was from Malawi. This was a significant finding in view of the fact that the applicant maintained that his passport and travel documents had been stolen from him shortly after his arrival in Dublin. The judge concluded that while there may have been some confusion as to when the applicant first realised he was gay, no adverse finding was made on account of this. It was accepted by the Tribunal that the applicant was a homosexual at the time he received the threatening letters in 2010, which prompted his departure from Malawi. The judge concluded that the Tribunal was entitled to enquire as to why the applicant had voluntarily left the United Kingdom to return to Malawi, especially as he had been in a homosexual relationship in the United Kingdom. The Tribunal was entitled to come to the conclusion that it was strange, in the circumstances, that the applicant did not know that homosexual acts were against the law in his home country. The judge ruled that the RAT fell into error in its conclusion that all the threatening letters were received by the applicant before he took flight to Balaka, when in fact he received the anonymous letter upon his return. The Tribunal fell into error in holding that an adverse finding could be made against him by virtue of the fact that he did not seek asylum in Kenya or Holland. The applicant gave credible reasons why he did not seek asylum in said countries. The judge concluded on account of such matters, the impugned decision of the RAT should be struck down.

-Order allowing applicant to seek judicial review & order quashing decision of the RAT.

-Matter to be referred back for reconsideration by a different Tribunal member.

R (E) v REFUGEE APPEALS TRIBUNAL UNREP MAC EOCHAIDH 19.4.2013 2013/43/12551 2013 IEHC 165

REFUGEE ACT 1996 S11

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

KHAZADI v MIN FOR JUSTICE & ORS UNREP 2.5.2006 2006/38/8020 2006 IEHC 175

IMMIGRATION ACT 1971 S24 (UK)

J (H) [IRAN] v SECRETARY OF STATE FOR THE HOME DEPT; T (H) [CAMEROON] v SECRETARY OF STATE FOR THE HOME DEPT 2011 2 AER 591 2011 1 AC 596 2010 3 WLR 386 2010 INLR 425 2010 UKSC 31

OJELABI v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP PEART 28.2.2005 2005/48/10025 2005 IEHC 42

HATHAWAY THE LAW OF REFUGEE STATUS 3ED 1991 72-73

HATHAWAY THE LAW OF REFUGEE STATUS 3ED 1991 46-50

HATHAWAY THE LAW OF REFUGEE STATUS 3ED 1991 49

REYES FERRADA, IN RE UNREP IABD 18.9.1981 (T81-9476)

E (SB) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 25.2.2010 2010/17/4323 2010 IEHC 133

TABI v MIN FOR JUSTICE UNREP COOKE 16.4.2010 2010/49/12241 2010 IEHC 109

O (E) (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP HEDIGAN 18.12.2008 2008/47/10120 2008 IEHC 433

R (R) v REFUGEE APPEALS TRIBUNAL & ORS UNREP 28.11.2008 2008/54/11263 2008 IEHC 406

Z (MU) v REFUGEE APPEALS TRIBUNAL (O'BRIEN) & MIN FOR JUSTICE UNREP 12.2.2010 2010/54/13568 2010 IEHC 141

Background

1 1. The applicant was born on 6 ^th July 1979 in Blantyre, Malawi. He is a member of the Ngoni ethnic group and is a Catholic. He speaks Chickewa and English. It is the applicant's case that he is a homosexual. He claims that on account of his sexual orientation he has suffered persecution in Malawi.

2 2. The applicant states that when he was 17 years old, he kissed another man. He went to the United Kingdom in April 2004 on a six-month visitor's visa. He overstayed his visa and remained in the UK until 2006. He obtained work in that country. He states that he was not aware of his sexual orientation until he had a sexual relationship with a French man for six months while he was in the UK. He left that country voluntarily in 2006. He says that he did not run into any difficulties on leaving the country. He was just told that if he wanted to return he would need to get a visa.

3 3. The applicant stated that he was aware that homosexuality was a taboo subject in Malawi, but he says that he did not know that it was illegal and punishable as a crime. He only became aware of this when he returned to Malawi.

4 4. In November 2008, the applicant says that he met a man through a friend of his and they had a relationship which lasted until approximately December 2009. He could only meet this homosexual friend in his house as they could not be openly gay. In December 2009, he was in a nightclub when a man came up to him and put it to him that he was gay. The applicant denied this. He went outside for a cigarette. He was followed outside and was beaten up by some men. He suffered broken teeth and some scarring to his face.

5 5. In early 2010, neighbours of the applicant found out that he was gay. He received a number of threatening letters telling him to leave his home due to his sexual orientation. In February 2010, he went to Balaka where he remained until early May 2010. However, on his return to his home in Blantyre, he received an anonymous letter threatening to report him to the police.

6 6. The applicant left Malawi on 17 ^th May 2010. He flew, first to Kenya and then to Holland where he had a stopover for a number of hours. He arrived in Ireland on 18 ^th May 2010. He said that he did not claim asylum in Kenya because it was a Muslim country where he would not be tolerated. He did not claim asylum in Holland because the man who had advised him in relation to his travel arrangements had said to him that he should come to Ireland. Shortly after his arrival in Ireland his bag, which contained his passport and other documents, was stolen. He applied for asylum in Ireland on 19 ^th May 2010. His application for asylum was refused by the Refugee Applications Commissioner, and on appeal, to the Refugee Appeals Tribunal (hereinafter "RAT"). His appeal was turned down in decision dated 23 ^rd November 2010.

Grounds of Challenge

7 7. Essentially, the RAT found the applicant's story to be lacking in credibility. The applicant has claimed that this decision is deficient in a number of respects.

8 8. The applicant submits that the RAT erred in fact and in law in failing to make any finding in the decision in relation to the applicant's identity and nationality. The applicant submitted that this was a central issue on which there should have been a definitive finding made by the RAT. The respondents argue that the RAT effectively accepted that he was from Malawi when it gave the following biographical details in its decision:

"The applicant was born on 6 ^th day of July 1979 and is a single man. He is a Catholic of the Ngoni ethnic origin from Lilongwe, Malawi. His first language is Chichewa and he can speak English. His mother is living in America."

9 9. In the circumstances, I am satisfied that the RAT did make what was effectively a clear finding that the applicant was from Malawi. This was a significant finding in view of the fact that the applicant maintained that his passport and travel documents had been stolen from him shortly after his arrival in Dublin.

10...